Smith v Land Information New Zealand

[2024] NZCA 348

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA432/2023
 [2024] NZCA 348

BETWEEN	DENNIS ARTHUR SMITH Appellant
AND	LAND INFORMATION NEW ZEALAND Respondent

Counsel:	Appellant in person N H Brown for Respondent
Judgment: (On the papers)	29 July 2024 at 11 am

JUDGMENT OF COLLINS J

A        The application for recall is declined.

BSecurity for costs of $7,060 remains payable within 10 working days of this decision.

C        The appellant must pay the respondent costs for a standard application on a band A basis with usual disbursements. 

____________________________________________________________________

REASONS

Introduction

1. The appellant, Mr Smith, seeks to recall my decision issued on 28 February 2024 in which I declined an application to review the Deputy Registrar’s decision not to dispense with security for costs.[1]

   [1]Smith v Land Information New Zealand [2024] NZCA 35.

2. The respondent, Land Information New Zealand (LINZ), opposes the application.

Background

1. Mr Smith and LINZ were parties to a dispute relating to land in Taumarunui (the land).  The land was owned by the Crown and administered by LINZ.  Mr Smith claimed a right to occupy the property pursuant to an alleged agreement to lease based on his dealings with LINZ and a former lessee of the property. 

2. In the High Court, LINZ sought summary judgment for possession of the property and a declaration that any occupation of the property other than by LINZ was unlawful.  In a judgment issued on 4 July 2023, Associate Judge Britain granted summary judgment and ordered Mr Smith vacate the property.[2] 

   [2]Land Information New Zealand v Smith [2023] NZHC 1700.

3. Mr Smith filed a notice of appeal in this Court on 2 August 2023 and, on 15 August 2023, applied to dispense with security for costs.  The Deputy Registrar declined his application for dispensation on 20 September 2023 and, on 24 February 2024, I declined Mr Smith’s application for review of the Deputy Registrar’s decision (the review decision).  Security for costs of $7,060 remained payable.

4. Mr Smith has now applied to recall the review decision.  His grounds are that he cannot afford the security for costs and that he is trying to defend himself and protect his interests.  He says the Deputy Registrar and I erroneously relied on Mr Smith being a beneficiary of a trust, that we were mistaken in finding he could pay security for costs and that he is seeking evidence from LINZ that will prove his claim is meritorious.

Analysis

1. The grounds on which a judgment can be recalled are limited.  Relevantly, a judgment can be recalled if, for some very special reason, justice requires the judgment be recalled.[3]  There is no such reason here.

   [3]Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; affirmed in Craig v Williams [2019] NZSC 60 at [10].

2. Mr Smith says that both the Deputy Registrar and I proceeded on the basis that Mr Smith was a beneficiary of a trust in determining the dispensation and review decisions.  He refers to a case he was involved in, Smith v Plowman, and says while he did not tell the Judge that he was a beneficiary of a family trust, he is described as such in that decision and that the Deputy Registrar and I took this into account in considering the applications.

3. Smith v Plowman was an appeal by Mr Smith against an unsuccessful review of an unsuccessful application by Mr Smith for a filing fee waiver.[4]  Mr Smith had applied for the waiver on the basis that he was a “beneficiary”, in the context of social welfare support from the Ministry of Social Development, rather than of a trust.[5]  The Court did however note Mr Smith’s evidence that he controlled and “could provide” trust assets.[6]  Mr Smith now says that he was a trustee, not a beneficiary, of that trust. 

   [4]Smith v Plowman [2021] NZHC 3223.

   [5]At [2] and [4].

   [6]At [5].

4. Nothing turns on whether he was or was not a trustee or beneficiary, because it does not change that he is not impecunious.  Mr Smith has disclosed in the present litigation that he has a range of assets in addition to the trust assets, including “more than a hundred machines”, “personal possessions” and a “housetruck”. 

5. Mr Smith also says LINZ has evidence of a “critical phone call” that proves his appeal has merit.  If such evidence exists, he needs to apply for leave to adduce it.

6. In any event, Mr Smith’s appeal is not one a reasonable and solvent litigant would pursue and he should be required to pay security for costs.  There is no special reason that justifies recall being granted.

7. The application for recall is declined.  The effect is that the security for costs of $7,060 remains payable.  It is reasonable in the circumstances to allow Mr Smith 10 working days to pay.

Strike out?

1. The respondent invited the Court to strike out Mr Smith’s appeal under r 37(1) of the Court of Appeal (Civil) Rules 2005 (the Rules).  Rule 37(1) allows the Court, on an interlocutory application or on its own initiative, to make an order striking out an appeal if security for costs is not paid by the time payment is due. 

2. In the review decision, Mr Smith was ordered to pay security for costs by 19 March 2024.  Payment is now overdue by three months.

3. We note there is no basis for this Court to grant further extensions of time to Mr Smith under r 43(1B)(d) of the Rules.  If Mr Smith fails to comply with r 43, the appeal will be deemed as abandoned.  However, if the respondent wishes to proceed with strike out, they can file an interlocutory application in this Court.

Costs

1. The respondent seeks standard costs.  Rule 53GA of the Rules provides that the principles applying to costs on an interlocutory application are the same as those that apply to costs on an application for leave to appeal.[7]  Rule 53G provides that if the Court refuses to give leave to appeal, or in this case refuses an interlocutory application, the applicant will normally be liable for costs.[8]  Mr Smith has not provided any reason provided why costs should not be awarded.  Mr Smith is therefore liable for costs.  We consider a costs award on a standard basis is appropriate.

Result

[7]Court of Appeal (Civil) Rules, r 53GA(1).

[8]Rule 53G(1).

1. The application for recall is declined.

2. Security for costs of $7,060 remains payable within 10 working days of this decision.

3. The appellant must pay the respondent costs for a standard application on a band A basis with usual disbursements.

Solicitors:
BVA The Practice, Palmerston North for Respondent